You are in your home and hear a knock at the door. You are surprised to find a group of police officers, one of whom asks if they could come in and look around. You ask if they have a warrant and the officer informs you that they do not have a warrant but would like to have a look around none the less.

In a slightly different situation, you are driving your car when you see flashing lights approaching. You pull to the side of the road to discover that the flashing lights have pulled right behind you. After asking for your license and registration and informing you of the motor vehicle infraction for which you were pulled over, the police officer asks to search the vehicle. You inquire as to whether he has a warrant. The officer notes that he does not have a warrant and then questions whether there is anything in the car you do not want the officer to find.

These are two scenarios where a person is confronted with a police officer’s request to conduct a consensual search. A person is often struck by conflicting feelings. On the one hand, the police may not have any right or legal basis to conduct a search. Conversely, a person may feel that refusing may give the appearance that he or she has something to hide.

You might initially question what prompted the officer to request the search. However, in New York and New Jersey, the general rule is that an officer is permitted to seek consent to search with absolutely no suspicion as to criminal activity. Only in New Jersey, in the case of a traffic stop, must an officer have a reasonable suspicion of criminal activity[i]. New Jersey Courts fear that a driver may feel compelled to consent when he or she is stranded on a highway after a motor vehicle stop.[ii]

Once you have been asked to consent to a search, it is crucial that you know that you have the right to say no. In fact, Police will often advise a suspect that they have the right to refuse. In New Jersey, an officer is required to inform a suspect that they have the right to refuse to be searched and if an officer does not so inform a suspect, then the consent will be deemed involuntary and the search declared invalid.[iii] Unfortunately, in New York, an officer is not required to inform a suspect that he or she has the right to refuse consent. However, even in New York, failure to so inform is a factor to be considered in determining whether the consent was voluntary.[iv]

Should you decide to offer consent, it is crucial to understand that consent to search is not a universal surrendering of all rights to privacy. A suspect’s consent to search limits a police search to the area that objectively and reasonably falls within the suspect’s scope of consent.[v] If you consent to a search of your garage, then the police cannot search your bedroom. If you permit the police to enter in order to look for a stolen television, they cannot search inside containers too small to contain such an object.

Now that you understand the underpinnings of a consensual search, what should you do in the scenarios described above? Do not consent to a search. If an officer has the authority to search a location or if there is an emergency at hand, then the officer will perform the search. If the officer has a warrant or the necessary probable cause to justify the search, a person’s refusal will only result in the officer’s forcibly entry in order search the area. When police ask your consent to search, it most likely means that they have not obtained a warrant to perform the search. Therefore, if the police ask for consent to search, you should refuse until they get a warrant. Nothing good will come of allowing police to search through you home and possessions. They are not looking to vindicate you; rather, they are looking for evidence to support a case against you.

That being said, each case is unique and there are situations where one could benefit from consenting to a search. Therefore, one should consult a Criminal Defense Attorney when confronted with the decision of whether to acquiesce to a police officer’s request for consent to search. Contact a Criminal Defense Attorney to learn about your rights.

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About the Author

Prior to joining the office, Judah Fuld served as the Law Clerk to the Honorable David H. Ironson, Superior Court of New Jersey, Criminal Division. Judah first appeared in court as a member of the Fordham Criminal Defense Clinic and has since expanded his work to various areas of criminal and civil law.

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